Bracton: Thorne Edition: English. Volume 2, Page 135

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Volume 2, Page 135

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By what persons possession may be acquired [for us].

[002] We must see by what persons [a thing] is acquired for us. ¹It is clear that it may be
[003] acquired by us personally, and by free men within our potestas, with our knowledge
[004] or without it, provided their act and the business is necessary and approved. By
[005] bondsmen, those within our potestas and those beyond it. And by those belonging to
[006] others, provided we possess them in good faith.² We acquire by our own outside our
[007] potestas, but we get nothing until their bodies are deraigned.³ We acquire by free
[008] men, as procurators, guardians and curators,⁴ as where procurators have stipulated
[009] in our name or guardians in possession in our name have recognized us as heirs,
[010] ⁵<provided they have recognized as heirs the true near or nearer heir,⁶ and, after he
[011] has been recognized, not before he has come and done homage and offered his lord
[012] what he ought rightfully to do, for [his possession] is not effective until that is done,⁷
[013] for, though he is the true heir, he may refuse the inheritance. Hence if the chief lord
[014] is in seisin, until he knows who the heir is and⁸ until the heir comes to him ready to
[015] do etc., or comes for any other reason, though he may say that he is in seisin in the
[016] name of such heir that is insufficient, for by such action the heir will not be in seisin.
[017] If someone other than the true heir is in seisin, or the true heir is and another claims
[018] to be heir, if the chief lord wishes to take his homage let him take it in this way, saving
[019] the right of any other (or ‘of such a one’) who claims to be heir.’⁹ Just as
[020] possession is acquired for [an heir] within age, so is it acquired for one born deaf
[021] and dumb, though they can neither hear nor speak, for to such the mere right and
[022] the property descends as it does to others.>¹⁰ Also by curators,¹¹ when a gift is made
[023] us underage and the donor provides us with a curator, ¹²for without a curator a minor
[024] can no more have the affectus retinendi than can one who is insane, since with respect
[025] to them [he who makes a gift] is like him who casts rain into the hand of a sleeping
[026] man.¹³ He who ought to take and retain must have the understanding to receive
[027] and retain,¹⁴ [and similarly] he who ought to take care and have the custody must
[028] have the understanding to do so, for ¹⁵if you send a minor or an insane person, free
[029] or bond, to possess on your behalf you are not in any way considered to have acquired
[030] possession through them, because they have no understanding.¹⁶ ¹⁷By a bondsman,
[031] even another's whom we possess in good faith, we acquire,¹⁸ because we believe him
[032] to be ours, having no

Notes

1-2. Inst. 2.9. pr. (expanded); om: ‘et per servos’; ‘vel’ for ‘et’; infra 288

3. Supra 89

4. D. 41.2.1.20

5. Supra i, 380

6. Supra 96, infra 247, 271,

7. ‘fit’ om: ‘vel’

8. ‘et’

9. Infra 228, iii, 246, 247

10. Supra 24, infra iv, 177, 351

11. curatores'

12-13. D. 41.2.1.3; for the texts of this and the other borrowings from D. infra v

14. D. 41.2.1.9

15-16. D. 41.2.1.10

17. Om: ‘de servis’

17-18. D. 41.2.1.6.