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[001] and better still if [all is done] in a public place, as in the county [or] hundred court,
[002] so that if the gift is denied it may more readily be proved. When a ceremony of
[003] such kind has been performed [and the charter] has once been acknowledged by
[004] the donor before witnesses summoned for that purpose, it is not of great importance
[005] whether it is sealed with his own seal or another's. But if there were no witnesses
[006] present and no such ceremony was performed and a doubt arises as to the seal
[007] and the charter, if the witnesses, when asked, say they know nothing of the matter,
[008] the charter (though genuine and valid) may then fail because of lack of proof, for
[009] proof may fail though there is no absence of right.1 If they are doubtful about the
[010] charter and gift they fail to prove it, for as long as there is doubt as to whether a
[011] thing exists it is as though it did not exist. If they testify that they believe it to be
[012] valid they still do not prove it, but raise a presumption of validity which must
[013] stand until the contrary is proved. If one witness says he was present that does
[014] not suffice for full proof, only for half proof,2 which also raises a presumption of
[015] validity. But if two say they were present, though the other witnesses say they
[016] know nothing of the matter, that suffices for full proof, since the others do not
[017] directly contradict the two and since ‘in the mouth of two or three witnesses every
[018] word may be established.’3 If the witnesses do not agree in their testimony, some
[019] speaking against the charter and gift and some in its favour, and the two groups
[020] are unequal in number, [the testimony] of the larger and more worthy group shall
[021] prevail. If they are equal in number and worth, let judgment be given for the
[022] charter and gift, that it prevail rather than fail.4 If the witnesses say they were
[023] present when the preliminaries of the gift were settled, or at the making and
[024] reading of a note [containing its terms], that does not suffice,5 for the parties could
[025] yet withdraw. Nor is it sufficient that the charter was made and sealed, unless it is
[026] proved that the gift was completed, [that is], that everything necessary for a gift
[027] was properly done and that livery followed, for otherwise the thing given can never
[028] be transferred to the donee.6 Homage may have been taken, the charter, genuine
[029] and authentic, properly drawn and formally read and heard, but the gift will
[030] never be valid until livery has been made.7 Thus the charter may be valid, but
[031] [the gift], since without seisin, nude.8 On the other hand, the gift may sometimes
[032] be valid and complete and the charter void, as where, having made a gift and
[033] given seisin to the donee,



Notes

1. D. 26.2.30: ‘non ius deficit, sed probatio’

2. Azo, Summa Cod. 4.20.9, no. 21: ‘si duo faciunt plenam, unus ergo semiplenam [probationem].’

3. Matth. 18:16

4. D. 34.5.12; Drogheda, 124, 348, 358: supra 78

5. Infra iv, 241

6. Infra iv, 240

7. Supra 64, infra 124, iv, 241

8. Infra 287


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