Published by EH.Net (July 2019)
Rosa Congost and Pablo F. Luna, editors, Agrarian Change and Imperfect Property: Emphyteusis in Europe (16th to 19th Centuries). Turnhout, Belgium: Brepols, 2018. 311 pp. €71 (softcover), ISBN: 978-2-503-57923-8.
Reviewed for EH.Net by Kara Dimitruk, Department of Economics, Stellenbosch University.
The fourteen chapters in this edited volume detail the use of emphyteutic contracts, which were of ancient Greek origin and came under the purview of Roman law, across Europe. Emphyteutic contracts had two main features: (1) they divided property rights of land into an ownership right and a use right in return for an annual rent and (2) they were long-term, which, in most cases, was perpetual or indefinite.
This volume on the practice and evolution of emphyteutic contracts is a result of an international workshop by the authors. The introductory chapter by Gérard Béaur, Rosa Congost, and Pablo F. Luna offers several broad themes that, rather loosely, tie the chapters together. The characterization that these contracts were versatile and flexible — a result of decisions made by the parties to the contract and economic and social forces as much as formal legal changes — is intriguing. The authors of this chapter (and most of the chapters), unfortunately, do not connect the volume to other scholarship on property rights generally, for example by Douglass North (1990) or Naomi Lamoreaux (2011), or on Europe during the early modern era, for example by S.R. Epstein (2000).
The chapters are organized by region. Chapter 2, by Giorgio Chittolini, overviews emphyteutic contracts in central-northern Italy. The title reflects its non-specific content “Some points on emphyteusis in central-northern Italy.” Chapter 3, by Michela Barbot, assesses the use of emphyteutic contracts along the rural-urban dimension in Lombardy. In addition to connecting the study to more general work on property rights, the chapter assesses the evolution of emphyteutic contracts (enfiteusi and livello) into full property rights. It then compares their effectiveness relative to contracts giving full rights. On this question, it uses court cases and lawsuits to show that the divided property rights of emphyteutic contracts did not generate more lawsuits for land or water resources relative to contracts with full ownership.
Chapters 4 through 6 cover areas across France and Germany. Using contracts from tax collection registers responsible for recording property transfers, Gérard Béaur shows that emphyteutic contracts in their “pure form” were under-used across France relative to similar alternatives in Chapter 4. He then uses post-mortem records for the Meaux region to document that emphyteutic contracts were used by a variety of actors: religious communities, in rural communities for agricultural development, and in urban areas to let lands as towns were built. Jean-Michel Boehler, in Chapter 5, compares Germanic emphyteutic contracts (erblehn and hoflehn) in seventeenth- and eighteenth-century Alsace and connects the contracts’ evolution to changing economic and legal practices. The chapter largely, unfortunately, relies on bulleted lists for points of comparison. The author suggests emphyteutic lessees often had what amounted to full property rights in this context. Chapter 6, by Fabrice Boudjaaba, summarizes the fieffe, an emphyteutic contract in use in the region of Normandy in the second half of the eighteenth century. It compares the types of property in fieffes compared to property under sales and leases. In a different approach than the other chapters, Bodjaaba argues that these different contracts were used to solve problems throughout the life cycle of lessors and lessees using a demographic database (ages) of the parties to the contracts.
Chapters 7 through 12 take us to Spain and Portugal. Rosa Congost, Pere Gifre, and Enric Saguer, in Chapter 7, find that sub-emphyteutic contracts (subestabliments), which transferred small parcels of land, had come to dominate in Girona during the final stages of the Ancien Régime. Using a sample of contracts from notaries, they argue this evolution was a result of the disappearance of common rights and the loss of power of the lessor landowners relative to the lessees. Chapter 8 presents a complementary study. Llorenç Ferrer-Alòs and Belén Moreno Claverías document the origins and evolution of the rabassa morta contract, which gave the lessee rights specifically for growing grapevines, in Catalonia. They show the use of the contract expanded with the spread of viniculture in the region, and, interestingly, disappeared with the collapse of the phylloxera plague that killed grapevines and therefore terminated the contracts.
In Chapter 9, Antònia Morey Tous and Gabriel Jover Avellà trace the ideological defense of emphyteusis during the period of liberal reform in Majorca and examine its role in large-scale fragmentation of estates on the island using information from land registers. The case is particularly interesting, as the authors note, because the evolution of the economy with tourist-based urbanization to the present has created frictions with these property rights.
The foro, a type of land tenure that allowed lords to bring land under cultivation and was often emphyteutic in Galicia, is the subject of Chapter 10 by Pegerto Saavedra. The chapter overviews the extent of the use of the foro, how and why it was a source of conflict between lessors (landowners and monasteries) and lessees, and the evolution of rents and crops in the terms of contracts from the 1500s to the 1830s. In contrast to the broad picture of the preceding chapter, Pablo F. Luna in Chapter 11, reviews emphyteusis specifically for religious institutions in Galicia. It uses the monastery of San Pelayo of Oviedo as a case study to trace how contracting practices, such as the types of contracts used by the monastery, evolved from about 1660 to 1890.
Chapter 12, by Benedita Camara, argues that reform efforts to regulate or formalize the colonia, a semi-emphyteutic contract, were linked to changes in relative prices that necessitated the adaptation of the contract to land use and to place it in the framework of the Civil Code in nineteenth-century Madeira. It draws on qualitative evidence and broad comparisons with changes in English leasing practices during period to support this argument.
The book closes with two chapters on the Greek archipelago (the Cyclades and the Ionian Islands). Eleftheria Zei, in Chapter 13, briefly overviews the development of a new elite, who gained power through the development of wine production and viniculture, using information from emphyteutic contracts in the Cyclades during the seventeenth and eighteenth century. The final chapter, by Efi Argyrou and Sevasti Lazaari, uses emphyteutic contracts from the isle of Lefkada while it was under Venetian rule from 1684 to 1797 to provide a sketch of the types of landholders on the isle.
The main contribution of the book, in my perspective, is the encyclopedic nature of the work. The details of the contracts covered in each chapter in particular make it a useful reference. I imagine specialists of the different regions or scholars working on property rights will be interested in the arguments and particularly the types of evidence used, such as the types of property in and terms of the contracts.
The chapters generally touch on important themes, such as the development of private property rights or how contracts interacted with changes in land use, or interesting periods, such as liberal reform efforts in the mid-nineteenth century, that may be of interest for general readers. The ambitious scope, however, comes at the cost of a coherent narrative across the chapters that are also of varying quality. The legal details that comprise most of the work, I suspect, will go beyond most readers’ interest.
Epstein, S. 2000. Freedom and Growth: The Rise of States and Markets in Europe, 1300 1750. London: Routledge.
Lamoreaux, N.R. 2011. “The Mystery of Property Rights: A U.S. Perspective.” Journal of Economic History 71 (2): 275-306.
North, D.C. 1990. Institutions, Institutional Change, and Economic Performance. Cambridge: Cambridge University Press.
Kara Dimitruk is a Postdoctoral Fellow in the Department of Economics at Stellenbosch University in South Africa. She studies property rights and political change in early modern England and the British Cape Colony.
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