The reintroduction of certain legal concepts (e.g. usufructuary leasing) has increased the importance of the case law and legal literature of the First Republic. To understand the distinction between the concepts of leasing and usufructuary leasing, it is now relevant to look to the text of NS ČSR Rv I 1061/24, which states: “Lower courts quite rightly hold the disputed contract to be a lease and not a usufructuary lease because its purpose was not the defendant’s use of the rented garden for fruitful cultivation or – as Art. 1090 GCC puts it – with toil and industry; rather the purpose was the mere use of the space to build a workshop and carry out trade. The plaintiffs’ view that the defendant had to use toil and industry to create the workshop and carry out successful trade is not relevant because such toil and industry do not come under the term ‘fruitful cultivation’. This is also obvious from the fact that the rental of unfurnished businesses or trading spaces (shops) would otherwise always be a usufructuary lease and never a lease because the tenant must always equip the premises according to its needs so that it can carry out trade there.”
From this ruling, we can deduce several important conclusions which remain relevant. Above all, it is essential that the object of a (direct) usufructuary lease is used for so-called fruitful cultivation; in other words, toil and industry must be directed at the very use of the object (for its fruitful cultivation). There is a crucial distinction between carrying out active business involving a certain object (this would generally be a lease) and working on the object with an intensity that reflects the term “fruitful cultivation”. Carrying out trade with respect to the object does not create a usufructuary lease per se. The business must involve the object’s fruitful cultivation.